Judges on the state’s highest court did not appear swayed Wednesday by arguments that the MBTA Communities zoning law amounts to an unfunded mandate imposed on municipalities by the Legislature.
The controversial 2021 law is intended to spur development of housing in more than 170 cities and towns that host or are adjacent to MBTA service by requiring those communities to adopt at least one zone where multi-family housing is allowed by right.
But Marshfield, which sits just south of the southern terminus of the Greenbush Line, sued the state Executive Office of Housing and Livable Communities, arguing that adopting the zoning mandated by the law forced it to absorb significant “incurred costs and expenses in evaluating and drafting proposed zoning bylaws and presenting them to Town Meeting.” A Superior Court judge concluded in June that the possible costs Marshfield did or could face were “indirect,” and that the MBTA Communities Act is therefore not an unfunded mandate.
The town appealed that decision to the SJC and renewed its arguments Wednesday.
“Marshfield was forced to employ a person to develop modeling. We had no experience applying the compliance regulations, we had to incur expense associated with that,” said Robert Galvin, an attorney for the town.
Justice Dalila Argaez Wendlandt needled Galvin’s argument and he was unable to point to language in the law that required the town to conduct modeling to develop at least one reasonably-sized zone where multi-family housing would be allowed by right. Galvin conceded, under the justice’s questioning, that Marshfield could have complied with the law by simply allowing multi-family housing in all of its zoning districts and that the cost of doing so would have been nominal.
“Our cases say that forcing you to make difficult choices is not a mandate, right?” Justice Scott Kafker said, earning agreement from Galvin. “That’s where I lose you. I understand modeling may have been expensive, but you made a choice to sort of try to accomplish the statute that way, as opposed to another. And that seems to fall within our case law that it’s not a mandate.”
Galvin disagreed and argued that the law “did not direct us to just allow multi-family housing in any district, it directed us to comply to develop a district of reasonable size with density, location requirements and a whole series of guidelines that I’ve never seen required in connection with the adoption of any zoning bylaw before.”
“This is very unique, and that’s what caused the expense to the town of Marshfield,” Galvin said.
Kafker contended that the town chose to take on expenses that fit “within a classic incidental expense, and the fact that it was more expensive was a choice you made.”
Assistant Attorney General Esme Caramello, head of the AG’s Housing Affordability Unit, contended that the MBTA Communities Act “is a zoning requirement” that does not impose any cost beyond incidental administrative expenses on any municipality.
“It sort of mandates a state of affairs. To get to that state of affairs, some communities, including the community of Marshfield, need to take some action to reach the obligation, to meet the obligation,” she said. “But that action is incidental to the primary obligation. The primary obligation is to have the zoning in place. So those costs, the costs of doing that as has been mentioned in the discussion this morning, are incidental administration costs.”
Kafker and Justice Serge Georges both raised the subject of local opposition to the MBTA Communities Act as a factor that potentially complicates matters for local officials. Kafker noted that the regulations around the law are “very detailed” and also “very controversial,” and that trying to comply in a way that satisfies both the law and town residents could “take, in these little towns, their zoning officer may not have the skill to do that.”
Georges pointed out to Caramello that in “a lot of communities where there is local opposition to this, you have to find the right place to have this district. It’s not just as easy as, ‘we’re going to put it here, we’re going to put it there,’ and that’s all there is to it.” He wanted to know what “the limiting principle is here” and Caramello responded by saying what’s most important in the town’s suit is what the statute does or does not actually impose upon the town.
“The reality is that neither the statute nor the regulations impose elaborate zoning obligations on towns. They just require, first of all, that the code include a multi-family zone and the steps required to do that are pretty simple. If communities want to choose to do it in a different way — and a different way can usually looks like adding additional policy objectives into the MBTA zone. So, for example, they might wish to put it in a particular part of town. They might wish to add affordability requirements. They might want to avoid certain areas,” she said. “Those are additional policy objectives of the town, and that’s fine.”
In January 2025, the SJC upheld the MBTA Communities Act as a constitutional law that the attorney general can enforce with legal action. But the high court also required the Healey administration to redo the regulation-setting process.
As of Feb. 10, 166 of the 177 communities have either come into compliance or submitted and/or adopted zoning ordinances intended to comply with the law, according to the Executive Office of Housing and Livable Communities. The remaining noncompliant towns are Carver, Dracut, East Bridgewater, Halifax, Holden, Marblehead, Middleton, Rehoboth, Tewksbury, Wilmington and Winthrop.
Though it was signed into law by Republican Gov. Charlie Baker, the three Republicans vying to run against Gov. Maura Healey this fall have seized on her administration’s implementation and enforcement of the MBTA Communities Act as an election year issue.
Brian Shortsleeve has pledged to “work for a full repeal” of the law if he is elected, and Mike Minogue said he would “cancel unfunded mandates, such as MBTA Communities Act.” Mike Kennealy, who helped write the original guidelines for the MBTA Communities Act during his tenure as Baker’s secretary of housing and economic development, has said Healey has “weaponized” the law against cities and towns.
Healey said last month that her administration will not deny or withhold fire safety grants from municipalities that are not in compliance, similar to a stance she took last year.
The seven justices of the SJC did not offer a timeline for their decision Wednesday. The court says that most cases are generally decided within 130 days of oral arguments, which would mean by the first half of July for cases heard Wednesday.
Colin Young is the deputy editor for State House News Service and State Affairs Pro Massachusetts. Reach him at colin.young@statehousenews.com.
